Fraudulent Concealment and the “Readily Observable” Defense in Florida Real Estate Litigation
Fraudulent concealment is a serious allegation in Florida real estate disputes—but not every alleged omission gives rise to liability. In many cases, Florida courts will bar such claims where the defect or issue in question was either known to the buyer or was something the buyer could have discovered with reasonable diligence.
This principle is especially relevant in cases involving visible property features or recorded permitting and title information. Florida law holds that when a buyer could have learned of the issue through proper inspection or review, the concealment claim may fail as a matter of law.
Elements of a Fraudulent Concealment Claim in Florida
To state a cause of action for fraudulent concealment under Florida law, a plaintiff must show that:
1. The seller had knowledge of a defect in the property;
2. The defect materially affected the value of the property;
3. The defect was not readily observable and was unknown to the buyer; and
4. The seller failed to disclose the defect to the buyer.
(Jensen v. Bailey, 76 So. 3d 980, 983 (Fla. 2d DCA 2011), citing Johnson v. Davis, 480 So. 2d 625, 629 (Fla. 1985))
What Makes a Defect “Readily Observable”?
The term “readily observable” means more than something being visible to the naked eye. As explained in Nelson v. Wiggs, 699 So. 2d 258, 260–61 (Fla. 3d DCA 1997), information is considered readily observable if it is within the diligent attention of a buyer. This includes information that a reasonable buyer would investigate based on what is furnished or visible at the time of sale.
The Fourth District echoed this in Lorber v. Passick, 327 So. 3d 297, 302 (Fla. 4th DCA 2021), holding that a buyer is expected to take reasonable steps to ascertain material facts relating to the property when those facts are reasonably ascertainable.
The Role of Public Records and Surveys
Florida courts also recognize that certain public information is deemed “readily observable” as a matter of law. In M/I Schottenstein Homes, Inc. v. Azam, 813 So. 2d 91 (Fla. 2002), the Florida Supreme Court held that knowledge of clearly revealed information from recorded documents in the chain of title is imputed to the buyer, and reliance on such representations may not be justified.
Permitting history, surveys, and municipal records are examples of publicly available sources that buyers are expected to review. If these materials contradict or raise questions about the condition or features of the property, a buyer may be obligated to investigate further before closing.
Application: Physical Improvements and Constructive Knowledge
In cases involving property improvements—such as installation of backyard structures or mechanical systems—Florida courts may find that the buyer had actual or constructive knowledge where:
• The improvement was visible upon a site visit;
• A survey provided before closing reflected the absence of the improvement;
• Permitting records were available to confirm the status of construction.
Where the buyer fails to investigate or inquire further under these circumstances, courts may rule that the alleged defect was readily observable and therefore not actionable.
Conclusion
In Florida, claims for fraudulent concealment are subject to dismissal when the alleged defect was visible, documented, or reasonably discoverable through routine diligence. Buyers are expected to inspect the property, review public records, and investigate discrepancies in available documents—especially where the purchase contract assigns them that responsibility.
At Recalde Law Firm, P.A., we represent parties in complex real estate litigation and help clients navigate claims where responsibility and knowledge are in dispute.
Recalde Law Firm, P.A.
Miami, FL
Phone: (305) 792-9100
Email: [email protected]
This post is for informational purposes only and does not constitute legal advice or form an attorney-client relationship.
